IRSHAD HUSAIN Vs. MAKUT MANOHAR

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit Brought by them for a declaration that a certain house situate in the City of Budaun was an Imambara and that the muafi land specified at the foot of the plaint was waqf property, and that neither the house nor the muafi was saleable in execution of a decree for sale obtained by Defendant No. 1 against Defendant No. 2 on the 8 of February 1923. The plaintiffs describe themselves as members of the Muhammedan public in the city of Budaun and alleged that the house and the muafi in dispute being waqf property, Defendant No. 2 had no right to mortgage the same, and as such the property in dispute was not saleable in execution of the decree obtained by Defendant No. 1. The defence to the suit was that the property in dispute was not waqf property but was the personal property of Intizam Ali.

(2.) The defence found favour with the trial Court, and it accordingly dismissed the plaintiffs suit, and the learned District Judge on appeal by the plaintiffs has affirmed the decision of the trial Court.

(3.) The decrees of the Courts below have been as sailed before me on the ground that the fact of the property being waqf was conclusively proved by the documentary evidence, and the Courts below misdirected themselves in not treating that documentary evidence as conclusive and in holding, on the basis of the documents and judgments relied on by the defendants-respondents, that the property in dispute was not waqf property. It is urged that it was not at all necessary for the plaintiffs to prove an actual dedication at a particular time of the property in dispute, and that according to Muhammadan Law mere user is sufficient to stamp a particular property with the character of waqf property. In support of these contentions reliance has been placed by the learned Counsel for the appellants on the case of Salig Ram V/s. Amjad Khan [1906] 3 A.L.J. 546 and on the case of Court of Wards V/s. Ilahi Bakhsh [1913] 40 Cal. 297.